Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Sunday, December 31, 2017

Ruminations 77(6): Looking Back on 2017 in Epigrams and Aphorisms

The year 2017 is ending with as great a flourish as 2016, even in the
absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections
between law, politics, economics, religion and culture. These events
will set the course for 2018, even as new actors seek to take manage
people, events, states, enterprises and other institutions with
substantial consequential effects of the mass. But most of all 2017
was the year of big data, of social credit, and of the realization that
the algorithmic institution (state or otherwise) might well replace the
regulatory state as the driving force for the management of people,
institutions and behaviors. Where once the regulatory state was said to
express the will of the people refined through their representatives in
government, currently the algorithmic enterprise can be said to build
systems for managing people and institutions from the data it harvests
from them applied to metrics that both reflect their desires and directs
it toward certain ends. But this was also the year of statues, of mass
violence and of surprising revelations that both marked and drove
significant cultural change.

With no objective in particular, this post and a number that follow
provides my summary of the slice of 2017 to which I paid attention through
epigrams and aphorisms. It follows an end of year tradition I started in 2016 (for those see here).

This Part 6 rounds out the 2017 series, with a focus on the nature of U.S. influence, on the character and nature of the manifestation of Chinese influence in the world, and the return of open (African) slavery now (again) run by and through Africa in the context of the fundamental contradictions of labor in globalized production. Share your own!

1. When Western elites bray about the loss of U.S. influence they are really whining about the loss of their own influence in the U.S. [I myself have argued that the U.S: is transforming its engagement from system builder to deal maker; but does it necessarily follow that the result is a reduction of influence or its transformation? But for an elite heavily invested in old ways of thinking about power this change tends to be measured by relation to the loss of their own influence then transferred to the nation. "I would argue that the largest trend today is the decline of American influence. Not the decline of American power — the country remains economically and militarily in a league of its own — but a decline of its desire and capacity to use that power to shape the world. " The decline of U.S. influence is the great global story of our age]

2. One does not measure the influence of Western societies through the antics of their states but, for good or ill, through the power of their private sector institutions--civil, religious and
economic. [The greatest success of U.S. influence was in the creation of an autonomous and global system of production and value chains that are themselves autonomous of the state that made them possible; to speak to the loss of influence pf the state in the West is to congratulate those states on the success of their own project to privatize and deeply embed their normative structures within the entire body of social relations. Why GE Will Not Be Impacted By U.S. Withdrawal From Paris Climate Agreement]

3. If human rights emerge from the people, it acquires its form only
when it is delivered back to them through the state; from the people, to
the people through the state; that appears to be the fundamental
relational structure of human rights. ["Despite the fact that the UN
human rights framework is grounded on the principle of the
universality, indivisibility and interdependence of all human rights,
China nonetheless is pushing its version of “human rights with Chinese characteristics,”
which prioritizes the right to development and economic rights over
individual civil and political rights, and insists on a relativistic
approach to human rights based on each country’s unique history,
culture, values, and political system." China Pushes ‘Human Rights With Chinese Characteristics’ at the UN]

4. When states speak about sovereign equality, they act as if that means the equality of those those states that exist below them on hierarchies of power and dependence. [Work Together to Build a Community of Shared Future for Mankind ("Sovereign equality is the most important norm governing
state-to-state relations over the past centuries and the cardinal
principle observed by the United Nations and all other international
organizations. The essence of sovereign equality is that the sovereignty
and dignity of all countries, whether big or small, strong or weak,
rich or poor, must be respected, their internal affairs allow no
interference and they have the right to independently choose their
social system and development path."); and contrast How China bungled its coming out party ("Be that as it may, the most surprising and
consequential story of the year was how Chinese power revealed itself in
all its breathtaking size for the very first time in centuries, and —
more importantly — how the world recoiled in horror. . . . Not wanting to be left behind, Chinese diplomats in charge of Europe
managed to sprinkle the year with recurring scandals: censorship of
British academic publishers; a scurry of acquisitions of German
companies that raised alarms all the way to Brussels; and — most damagingly — an over-solicitous defense of Chinese interests by a number of friendly European nations.")]

6. The powerful tend to speak about themselves as if they were the
embodiment of the system or ideology that they control or in which they
are embedded; sometimes, then, when elites speak to the undoing of rules
and systems they usually mean that those rules and systems are about to
be remade and that in the remaking they will have been removed from
positions of dominance and influence in the system that emerges. [""While
emasculating the trade organization may seem foolhardy, trade experts
warn that blowing up international trade law may be the only way the
Trump administration could pursue its quixotic goal of eliminating the
bilateral trade deficits that it has with most countries."Trump’s Trade Endgame Could Be the Undoing of Global Rules]

7. The cult of personality is the disease that eventually kills every political, social, economic or religious system in which it finds a home; it is a fundamental inversion which runs its course when the ideology becomes the leader. ["All of Leninism may be reduced to two famous words uttered by the Founder in 1921 and repeated by Leon Trotsky and Joseph Stalin: “Kto kovo?” “Who, whom?” That is, who will do in whom?" The First Totalitarian].

10. It is sometimes hard to distinguish wars on religion from wars of religion. [An old pattern in new garb; Drug lords in Brazil appear to be the new Clovis; religion continues to serve the secular power well as a tool for extending and managing control; "For drug kingpins, developing positive relationships with local Rio pastors while in jail can tighten their grip on power once released." In Brazil, religious gang leaders say they're waging a holy war]

11. No society has confronted the fundamental contradiction of the dual nature of labor (as person and as task); and the fundamental problem of labor revolves around the question of servitude, not to capital (a distraction) but as the incarnation of hierarchy. [African refugees bought, sold and murdered in Libya ("He added that people were being auctioned off in the town, with men and women fetching 1,000 Libyan dinars ($735). Others from Ghana and Cameroon might fetch several thousand Libyan dinars.") People for sale: Where lives are auctioned for $400]

12. It is only when employees are understood not as the providers of labor but as the servants of a master that one can understand the ordinariness of the premise that any act of the servant affects the reputation of the master and thus can be controlled by the master. [Unlike capital, labor has a dual nature; that is labor is
provided by a person but the labor provided is not inextricably
personal; to be able to command has the effect of transferring power over
individuals to others--and that reduces all labor to a spectrum of
control of the person, the limiting condition of which is that off the
slave. [My manager wrote me up because she didn’t approve of someone on my personal Facebook page. Thoughts?; How To Train Your Employees To Be Brand Ambassadors]

14. And yet the great contradiction of labor defines the power relations between master and servant--an individual does not merely sell her labor, she binds herself to service and thus consents to the suzerainty of the master in all aspects of the servants life. [Within these parameters there is only a difference in degree (a substantial one to be sure and one on which legal distinctions are built) between the labors of the independent contractor and of the slave and to treat slavery as exceptional and historically contingent affects generally the analysis of labor; Death by Overwork in Japan: Cultivating a Healthy Workforce From Across the World ("In the wake of increased international focus on karoshi—a common Japanese term meaning “death by overwork”—Japan’s government and business leaders alike agree that Japan’s “culture of overwork” is a critical issue in need of a solution."); but see Right to a private life at work? Monitoring an employee's communications was a breach of the Article 8 right to a private life (managing the scope and application of the power in employers); ]

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.